http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/72572/index.do 
Tuccaro v. Canada (July 25, 2014 – 2014 FCA 184) was an appeal from a decision of the Tax Court:
http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/62997/index.do
which had, among other things, struck out that portion of Mr. Tuccaro’s pleadings claiming tax exemption on the basis of Treaty 8. In striking out that claim the Tax Court relied upon two earlier decisions of the Federal Court of Appeal: Benoit and Dumont. The Court of Appeal framed the issues before it as follows;
[1] Both Mr. Tuccaro and the Crown have appealed the order of Bocock, J. (Tax Court Judge) dated September 23, 2013 (2013 TCC 300). The Crown had brought a motion to strike certain parts of Mr. Tuccaro’s Notice of Appeal and the Tax Court Judge:
(a) allowed the motion in part and struck the parts related to Mr. Tuccaro’s claim that he is exempt from tax as a result of Treaty 8 (which is a Treaty between the Crown and certain Aboriginal peoples signed in 1899) and the paragraphs related to the historical background to the signing of this Treaty;
(b) ordered Mr. Tuccaro to redraft paragraph 43 which only provided that:
[t]he status Indian employees of Neegan were treated as tax-exempt
(Neegan is Neegan Development Corporation Ltd.. Mr. Tuccaro, in his Notice of Appeal, stated that he was the sole shareholder of this company during the taxation years under appeal); and
(c) dismissed the Crown’s motion to strike the paragraphs related to the Indian Act Exemption for Employment Income Guidelines published by the Canada Revenue Agency and the honour of the Crown.
[2] Mr. Tuccaro has appealed the decision to strike the paragraphs related to Treaty 8. The Crown has cross-appealed the decision to order Mr. Tuccaro to redraft paragraph 43 on the basis that the statement related to the tax treatment of another taxpayer is not relevant in the appeal of Mr. Tuccaro to the Tax Court. The Crown also has appealed the decision not to strike the paragraphs related to the Guidelines and the honour of the Crown on the basis that the Tax Court Judge erred in not finding that it was plain and obvious that Mr. Tuccaro could not succeed in relation to these claims.
The court first concluded that the Dumont was entirely based on the Benoit case and then went on to conclude that, on the evidence the Benoit decision was not binding on the Tax Court:
[22] It was an error of law for the Tax Court Judge to rely on the “established law regarding the lack of legal effect of Treaty 8 in granting tax exempt status to its signatories” in striking the paragraphs of Mr. Tuccaro’s Notice of Appeal related to Treaty 8. There is no law decided in the Benoit case – only the question of fact of whether the Aboriginal signatories to this treaty had understood that a promise of tax exemption had been made by the commissioners who negotiated the Treaty on behalf of the Crown. The failure to identify and address all of the required elements of issue estoppel – which is a species of res judicata that was initially identified as the basis for the motion to strike the paragraphs related to Treaty 8 – was also an error of law.
[23] To determine whether issue estoppel is applicable in relation to a particular proceeding, the first matter that must be determined is whether the question that is raised in the current proceeding is the same question that was addressed in the previous proceeding. Counsel for Mr. Tuccaro acknowledged during the appeal that Mr. Tuccaro is raising the same question that was addressed by this Court in Benoit, i.e. whether “the Aboriginal signatories understood that they would be exempted from taxation at any time for any reason”. He also acknowledged that the decision of this Court in Benoit was a final decision (leave to appeal the decision of this Court in Benoit to the Supreme Court of Canada was denied). The only remaining precondition for issue estoppel is whether Mr. Tuccaro or his privy was a party in Benoit.
[24] There were three plaintiffs in the Benoit case (who were also respondents in the appeal) in addition to Mr. Benoit – Athabasca Tribal Corporation, The Lesser Slave Lake Regional Council and Kee Tas Kee Now Tribunal Council. Since the appeal in this Court was focused on the decision of the Tax Court Judge who had determined that the paragraphs should be struck on the basis that he was bound by the “established law”, there was no discussion by the Tax Court Judge or by the parties in this appeal with respect to whether Mr. Tuccaro should be considered to have been represented by any of the plaintiffs in Benoit or whether any of those plaintiffs was a privy for Mr. Tuccaro. There was no indication in the record that either party had presented evidence on this point at the hearing of the Crown’s motion.
As a result the court allowed Mr. Tuccaro’s appeal in relation to his Treaty 8 pleading.
Both of the Crown’s cross-appeals were dismissed:
[30] The Crown has cross-appealed in relation to the decision of the Tax Court judge to order Mr. Tuccaro to redraft paragraph 43 of his Notice of Appeal. The argument of the Crown is not that Mr. Tuccaro should not redraft this paragraph but that the one sentence that was in paragraph 43 (and which is quoted above) should have been struck. It seems to me that since the Tax Court Judge has ordered Mr. Tuccaro to redraft this paragraph, it is premature to address the question of whether the single existing sentence of paragraph 43 should be struck as this sentence may not be in the redrafted paragraph. I would therefore dismiss the Crown’s cross-appeal in relation to the existing paragraph 43.
[31] With respect to the cross-appeal related to the refusal to strike the paragraphs related to the Guidelines and the honour of the Crown, I am not persuaded that the Tax Court Judge committed any error in finding that “the Guidelines Argument, even in the context of the Honour of the Crown argument, cannot be said to have ‘no chance of success’ when considered in the context of the Appellant’s factual history, the sequence of events in his claim for a section 87 exemption and the fact that a trial judge has not previously weighed the probative value and weight of the Guidelines Argument in such a factual context”. I would dismiss the Crown’s appeal in relation to those paragraphs.
The court awarded costs to Mr. Tuccaro.